-------------------------------------------------------- )(
WORLD OF BOXING LLC, VLADIMIR
HRUNOV, and ANDREY RYABINSKIY,
Plaintiffs,
OPINION AND ORDER
- against 14-cv-3791 (SAS)
DON KING and DON KING
PRODUCTIONS, Inc.,
Defendants.
--------------------------------------------------------
)(
I.
INTRODUCTION
day the bout was supposed to take place, Jones tested positive for furosemide, an
illicit, performance-enhancing diuretic. The positive drug test precluded Jones
from competing, and the bout was called off.
On May 28, 2014, WOB filed this suit. WOB alleges that King, by
failing to produce a clean fighter, breached the Agreement.2 King makes two
arguments in his defense. First, he argues that the Agreement only required him to
do everything within his control . . . to cause Joness participation3 because
Joness use of furosemide was not within Kings control, it cannot be grounds for
breach. Second, King argues that even if he did breach the Agreement, his failure
to perform should be excused because performance was impossible. King has also
filed two counterclaims, alleging that, in fact, WOB was the party responsible for
violating the Agreement.4
On August 22, 2014, WOB moved for partial summary judgment on
the question of contract liability. WOB seeks (1) a ruling that King is liable for
36-47.
Defendants Memorandum in Opposition to Summary Judgment
(Def. Mem.), at 11 (emphasis added).
3
BACKGROUND
The following facts are undisputed. On May 17, 2013, Jones and
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On January 28, 2014, King and WOB finalized terms for a second
administration of the Cruiserweight Title match between Lebedev and Jones. In
the Agreement, King represented that he holds the exclusive promotional rights
for Jones,9 and he promised to cause Jones [] to participate in the rematch.10
The Agreement also imposed the following restrictions on Jones:
Jones must arrive in Moscow a minimum of 7 days before the
Event and shall remain in Moscow until the Event. Jones also
undertakes to be subjected to drug testing before and after the
fight, in compliance with the rules of the WBA and the [2013
WBA Resolution].11
The purpose of these provisions, as King has explained by affidavit, was to
preclude another [] positive drug test [from Jones].12
The rematch was finalized for April 25, 2014. On April 23, 2014,
urine samples were collected from both Jones and Lebedev and submitted for
testing. On April 25, 2014 the day the bout was supposed to take place a
report was issued, finding that Lebedevs sample was clean but that Joness sample
WBA (McAleenan Decl.) IV B.
9
Agreement III 1.
10
Id.
12
tested positive for furosemide. When WOB and Lebedev learned of this news,
Lebedev withdrew from the bout.13 On April 28, 2014, the WBA issued a letter
deeming Lebedevs withdrawal justifiabl[e] on the basis that [t]he WBA would
not, and could not, sanction a championship bout when it was aware of Jones
positive test as this would violate WBA rules, may cause unnecessary harm to
[Lebedev], and would otherwise compromise the nature of WBA world title
bouts.14 On May 23, 2014, after reviewing the test results more carefully, the
The parties have a dispute about the significance of various events
leading up to Lebedevs decision to withdraw. King submits and for the
purposes of this Opinion, I will accept as true that immediately after the positive
test, Carlos Chavez, the WBA supervisor in Moscow in charge of the bout, ruled
that the urine test was unofficial and that the [bout] should take place as
scheduled. Defendants Counterclaim (Counterclaim) 23. In response, WOB
counters and once again, I will accept this as true that after Chavez ordered
the bout to go forward, Gilbert Mendoza, Jr., the President of the WBA, reversed
Chavezs decision and deemed the bout cancelled. See McAleenan Decl. 21-22.
For the reasons set forth during the August 15, 2014 conference, this
dispute is irrelevant. As I put it then, because it is not in dispute that [Jones] took
a prohibited substance, [there is no reason to] care about Chavez and Mendoza.
[Jones] could not have fought [the] bout. There is no question that [King] could
not produce him. The only [] question is [whether King was obligated to produce
him, and if so] whether the breach was excused. 8/15/14 Transcript of Premotion
Conference (Conf. Tr.), at 3.
13
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WBA issued a resolution (1) affirming the finding that Joness urine contained
furosemide, (2) suspending Jones from WBA-sanctioned bouts for two years, and
(3) naming Lebedev Cruiserweight champion.15
On May 28, 2014, WOB brought the present suit. It argues that King,
by failing to cause Jones [] to participate in the bout, breached the terms of the
Agreement.16 King has counterclaimed, asserting breach by WOB.17 He argues
that Lebedevs decision to unilaterally withdraw18 after learning of Joness
positive drug test violated the terms of the Agreement.
III.
STANDARD OF REVIEW
Summary judgment is appropriate where, construing all the evidence
in the light most favorable to the [non-moving party] and drawing all reasonable
inferences in that partys favor, there is no genuine issue as to any material fact
and . . . the [moving party] is entitled to judgment as a matter of law.19 A fact is
material if it might affect the outcome of the suit under the governing law, and an
15
16
17
18
Id. 25.
Rivera v. Rochester Genesee Regl Transp. Auth., 743 F.3d 11, 19 (2d
Cir. 2014) (quoting Fed. R. Civ. P. 56(c)) (some quotation marks omitted).
19
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issue of fact is genuine if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.20 In deciding a motion for summary judgment,
[t]he role of the court is not to resolve disputed issues of fact but to assess
whether there are any factual issues to be tried.21
IV.
APPLICABLE LAW
Because this is a diversity action, the Court applies the law of the
forum in which [it] sits.22 Here, the Agreement provides that it shall be
interpreted, construed, and enforced in accordance with the laws of the State of
New York.23 Therefore, New York law governs.
A.
Breach of Contract
Under New York law, contracts are given the meaning intended by
the parties, as derived from the language of the contract in question.24 Contract
Windsor v. United States, 699 F.3d 169, 192 (2d Cir. 2012), affd, 133
S. Ct. 2675 (2013) (quotations and alterations omitted).
20
Brod v. Omya, Inc., 653 F.3d 156, 164 (2d Cir. 2011) (quotation
marks and citations omitted).
21
23
Agreement III 9.
24
25
26
Id.
See This Is Me, Inc. v. Taylor, 157 F.3d 139, 144 (2d Cir. 1998)
(applying New York law).
27
Diesel Props S.R.L. v. Greystone Bus. Credit II LLC, 631 F.3d 42, 52
(2d Cir. 2011) (applying New York law).
28
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30
Id. 261(b).
Kel Kim, Corp. v. Central Mkts., Inc., 70 N.Y.2d 900, 902 (1987).
Accord U.S. v. Winstar Corp., 518 U.S. 839, 905 n.53 (1996) (citing Kel Kim and
compiling other sources).
31
32
Kel Kim, 70 N.Y.2d at 902. Accord East 61st Garage v. Savoy Fifth
Ave. Corp., 296 N.Y.S.2d 338, 344 (N.Y. 1968); Ogdensburg Urban Renewal
Agency v. Moroney, 345 N.Y.S.2d 169, 171 (N.Y. 1973). This is not necessarily
true in every jurisdiction the Second Restatement suggests that [t]he fact that
33
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V.
DISCUSSION
A.
Round WBA Cruiserweight World Title match [against Lebedev].34 King argues
that this clause is ambiguous, and that its meaning depends on unresolved factual
questions, making summary judgment inappropriate.
But the relevant facts are not in dispute. Under WBA rules which
the Agreement incorporates by reference any boxer who tests positive for a
banned, performance-enhancing substance is disqualified from WBA-sponsored
bouts for no less than six months.35 Both parties agree that Jones ingested
furosemide,36 and there is no question that having tested positive for furosemide,
Jones could not participate in the bout.37 This ends the inquiry. If Jones could not
participate in the bout, it follows a fortiori that King could not have caused Jones
the event was foreseeable, or even foreseen, does not necessarily compel a
conclusion that its non-occurrence was not a basic assumption. Second
Restatement 261(b) (emphasis added). But New York law is crystal clear: the
supervening event must have been unanticipated for an impossibility defense to
prevail.
34
Agreement III 1.
35
36
Conf. Tr. at 2.
37
39
40
Id. at 8.
41
untenable outcome.
While these arguments might have force, they are addressed to the
wrong issue. King could be right: under the circumstances, it is possible that his
contractual obligations were too onerous to be enforceable. But that question goes
to whether Kings failure to perform may be excused, not to whether King in fact
failed to perform.42 As to the latter, Joness disqualification plainly put King in
breach.
B.
43
44
eve of the first show. When the theater owner sued for breach, the New York
Court of Appeals excused the managers non-performance on the grounds that
[c]ontracts for personal services contracts that require action by a specific
person are subject to [the] implied condition[] that . . . if [the person] dies, or
without fault on the part of the covenantor becomes disabled, the obligation to
perform is extinguished.45 Likewise here, argues King: by ingesting furosemide,
Jones disabled himself from participating in a WBA-sponsored bout, thereby
extinguishing Kings obligation to perform.
New York law is very clear, however, that an impossibility defense is
only available if the frustration of performance was produced by an unanticipated
event that could not have been foreseen or guarded against in the contract.46 In
this case, two key facts compel the conclusion that Joness ingestion of furosemide
was not unanticipated i.e., that King should have foreseen the possibility of
Jones testing positive and guarded against it in the contract. First, Jones had a
history of doping. The result of the first Cruiserweight Title match between Jones
and Lebedev in May 2013 had to be vacated because Jones tested positive
45
Kel Kim, 70 N.Y.2d at 902. Accord East 61st Garage, 296 N.Y.S.2d
at 344; Ogdensburg, 345 N.Y.S.2d at 171.
46
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for furosemide after the fact.47 Second, the Agreement provided for mandatory
pre-bout drug testing,48 as required by the 2013 WBA Resolution.49
King tries to turn these facts around. Noting how stunned and
shocked he was to learn of the positive drug test on April 25, 2014,50 King
reports that it defie[d] belief, that Jones, aware that he would be subjected to prebout drug testing due to his previous positive result, would again test positive for
the same banned substance.51 Put otherwise, King believed that the mandatory
drug testing provision . . . would preclude another potential positive drug test,
because [Jones] knew that [he] would be subject to random [] testing.52
Therefore, in Kings view, he should not be punished for failing to foresee such a
plainly remote and unlikely event.53
While Kings dismay is understandable it is stunning that Jones
was foolish enough to test positive for the same drug twice his argument
47
48
See Agreement C 6.
49
50
51
52
King Aff. 8.
53
misconstrues the term unanticipated event. King casts the question in terms of
probability: an event is unanticipated, in his view, if it is unlikely to occur.
What the case law has in mind, however, are not improbable events, but events that
fall outside the sphere of what a reasonable person would plan for.54 Even
assuming that King is right about the likelihood of a second positive test, it strains
credibility to call the event unanticipated.
Kings own testimony proves the point. By way of explaining why
the Agreement was silent about what to do in the event of a second positive test,
King admits that he thought the mandatory drug testing provision would
preclude Jones from ingesting furosemide.55 No doubt he did. From this
testimony, however, no one could reasonably conclude that King had not
anticipated the possibility of a second positive test. Rather, the inescapable
conclusion is that King had anticipated such a possibility and having anticipated
it, he believed the threat of a mandatory drug test would ward it off. That Kings
belief turned out to be mistaken is no basis for relieving him of his contract
obligations.
See, e.g., Kel Kim, 70 N.Y.2d at 902 (emphasizing that the proper
question is whether the performance-frustrating event should have been foreseen
and guarded against in the contract).
54
55
King Aff. 8.
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56
57
Def. Mem. at 8.
See Winstar, 518 U.S. at 905.
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cannot be excused.
C.
CONCLUSION
For the foregoing reasons, WOBs partial motion for summary
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by October 17; and WOB's reply (5 pages) should be filed by October 24.
SO ORDERED:
Dated:
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